ABG16 v Minister for Immigration

[2017] FCCA 2146

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABG16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2146

Catchwords:
MIGRATION – application for protection visa – citizen of Bangladesh – not credible witness – it was a matter for the Tribunal to determine what weight to give the evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36,476

Applicant: ABG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 22 of 2016

Judgment of: Judge Street

Hearing date: 6 September 2017

Date of Last Submission: 6 September 2017

Delivered at: Sydney

Delivered on: 6 September 2017

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 22 of 2016

ABG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction, under s. 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 30 December 2015, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh, and his claims were assessed against that country. The applicant claimed to fear harm in Bangladesh, because his father had joined the Bangladesh National Party (“BNP”) in 2003. The applicant arrived in Australia on 6 December 2012, as an irregular maritime arrival.  On 27 May 2013, the applicant lodged an application for protection.

3. On 21 August 2014, the delegate found the applicant had failed to meet the criteria under the Act, and refused to grant him a visa.

The Tribunal’s decision

1. The applicant applied for review on 24 September 2014. By letter, dated 17 July 2015, the applicant was invited to attend a hearing before the Tribunal on 12 November 2015. The applicant appeared on that date to give evidence and present arguments.

2. Following the hearing, on 12 November 2015, the applicant’s migration agent provided further submissions, which included an article from the Independent, and the submissions referred to the BNP certificates that the applicant had provided. It was submitted to the Tribunal that the article supported that the person referred to in those certificates was the local leader of the BNP. The submission also made reference to politically motivated arrests in Bangladesh.

3. The Tribunal identified the applicant’s background in relation to the application for a visa. The Tribunal set out the relevant law. The Tribunal set out the applicant’s claims and evidence. The Tribunal identified having serious concerns as to the truth of the applicant’s claims. The Tribunal found that the applicant’s claims had claimed significantly changed over the time. The Tribunal found that the applicant’s claims were also vague in general, as to knowledge of the BNP, its practices and his father’s position in the party. The Tribunal found that the applicant was not a credible witness. The Tribunal did not accept as true any of the applicant’s claims of involvement by him or his father in the BNP or either of them fearing any harm or being harmed as a consequence. The Tribunal did not accept the applicant is from a wealthy, land owning or land renting family, and the Tribunal found that claim to be fabricated.  The Tribunal found that little weight could be placed on anything the applicant has claimed as to why he may have left Bangladesh or the fears of return.

4. The Tribunal made reference to documents provided by the applicant, and did not accept the documents from the BNP were genuine. The Tribunal made reference to it being apparent that the applicant was able to work and earn a livelihood in Bangladesh. The Tribunal did not accept that he would not be able to earn a livelihood in Bangladesh. The Tribunal found the application for protection was opportunistic and has been made for the purpose of securing a migration outcome for the applicant and to enable him to work in Australia. The Tribunal did not accept any of the applicant’s other claims to be true. The Tribunal was not satisfied the applicant is a person in respect to whom Australia has protection obligations under the convention. The Tribunal found the applicant failed to meet the criteria under s.36(2)(a) of the Act.

5. The Tribunal was not satisfied the applicant is a person in respect to whom Australia has protection obligations under s.36(2)(aa) of the Act, and affirmed the decision under review.

Application to this Court

1. The ground in the applications are as follows:

   1. The Tribunal made a jurisdictional error by failing to take into account a piece of evidence.

   Particulars

   a. The Tribunal received a post-hearing submission dated 12 November 2015 from the applicant’s representative.

   b. The submission attached a newspaper article dated 16 September 2015 confirming the identity of the person who signed the two BNP certificates submitted by the applicant and referred to by the Tribunal at paragraph 38 of its decision

   c. The Tribunal failed to consider the significance of the newspaper article either in relation to the genuineness of the two BNP certificates or otherwise in support of the applicant’s claims.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing.  The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application of the applicant would be dismissed.  The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submission from the counsel for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing, as explained by the Court.

4. From the bar table, the applicant maintained that he was not saying that there was any error. The applicant contended that what he told the Tribunal was the truth. The applicant said that he came to Australia for financial reasons, but also for political reasons. The applicant said both were true and that he came by boat because his life was in danger. The applicant invited the Court to have investigated his claims that he was telling the truth, and asked the Court to give him a decision favourable to save his life.

5. This Court does not have power to revisit the merits. The Court cannot make fresh findings of fact as to the applicant’s claims. The Court’s powers are limited to considering whether or not the Tribunal’s decision is affected by relevant legal error. The Court cannot decide the matter on compassionate grounds.  In substance, the submissions by the applicant from the bar the table invited the Court to engage in impermissible merits review. The adverse credit findings by the Tribunal were the subject of identified logical, rational and reasonable reasoning and cannot be said to reflect matters of a minor or trivial nature. The adverse credibility findings were open on the material before the Tribunal.

6. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review.  Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal.

Ground 1

1. In relation to ground 1, it is apparent that the Tribunal expressly made reference to the submissions that included the article from the Independent. It was not necessary for the Tribunal to refer to every piece of evidence before the Tribunal. Further, it was a matter for the Tribunal to determine what weight to give to the evidence. The Tribunal made express reference to the BNP certificates and decided to give no weight to the same, given the adverse credibility findings made by the Tribunal of the applicant. 

2. It is not apparent how the Independent article could, in any way, have overcome those adverse credibility findings, and the article was not capable of verifying the authenticity of the two BNP certificates. It was not necessary for the Tribunal to expressly refer to the newspaper article. No jurisdictional error as alleged in ground 1 is made out.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 October 2017